After Canada’s spy watchdog dismissed a complaint over the monitoring of pipeline protesters, a civil liberties group is appealing the decision in Federal Court and protesting the extreme secrecy around the proceedings.

Paul Champ, a lawyer representing the B.C. Civil Liberties Association, said the watchdog has imposed such draconian secrecy requirements that he’s not even allowed to disclose what their own witnesses submitted as evidence in the hearings.

“I have had cases before with the Security Intelligence Review Committee (SIRC), and I have never seen them make a decision like this before,” Champ said.

He said the review committee frequently redacts information in its decisions to protect national security interests, but their confidentiality orders here make no sense.

“In this case, the SIRC’s order is blanket, and it relates to evidence that clearly, in our view, cannot be national security evidence because it’s the evidence of our own witnesses. It’s witnesses from well-known environmental organizations in British Columbia.”

The fight dates back five years, when media outlets used documents obtained through access-to-information laws that seemed to show the RCMP and the Canadian Security Intelligence Service were monitoring activists protesting the proposed Northern Gateway pipeline. CSIS is prohibited from collecting information on Canadians unless there are grounds to suspect they constitute a threat to Canada’s security.

The reports raised concerns that the security agencies were overstepping their mandates and were possibly sharing the information with the National Energy Board and petroleum companies.

In February 2014, the BCCLA asked the oversight bodies of both CSIS and the RCMP to investigate the allegations.

The Civilian Review and Complaints Commission for the RCMP is still reviewing the matter and a decision is expected soon, Champ said.

SIRC, which has oversight responsibility for CSIS, opened an investigation and heard testimony in August 2015 from organizations including the BCCLA, LeadNow, ForestEthics, the Dogwood Initiative, and the Sierra Club of B.C.

In a 58-page decision dated May 30, 2017, and delivered to the BCCLA in September after it was reviewed for security considerations, SIRC dismissed the complaint. The decision itself is confidential, and the committee instructed witnesses not to disclose any of the evidence they submitted as part of the hearings.

The BCCLA then asked for clarification on whether it could publicly disclose any of the committee’s final decision, but was told by letter that SIRC had nothing further to add.

Champ said the presiding committee member appears to be over-interpreting a section of the CSIS Act that says investigations of a complaint made to SIRC “shall be conducted in private.”

“In my experience, that means … that the public or the media cannot come into the hearing room,” he said. “But I haven’t been involved in a case before where the committee has ordered one of the parties or the complainant to not disclose anything about the evidence or their own arguments.”

I have never seen them make a decision like this before

The application for judicial review filed in Federal Court this week argues that SIRC made errors in law when it dismissed the complaint. It also argues SIRC is violating the Charter right to free expression by prohibiting the witnesses from discussing their own evidence.

Last spring, the Liberal government introduced a sweeping overhaul of the oversight of Canada’s national security agencies. It includes the creation of a new “super-watchdog” that will absorb the functions of both SIRC and the RCMP review commission. The proposed legislation has not yet been debated in parliament.

Champ said they are arguing this case in court partly to make sure that the new agency does not impose similar secrecy conditions on its hearings.

A spokesperson for Public Safety Minister Ralph Goodale declined to comment on a matter before the courts, but noted that the new agency “would be bound by the requirements and procedures necessary to protect classified information.”

Matthew Dubé, public safety critic for the NDP, said his party is still concerned the new legislation doesn’t go far enough in ensuring transparency and real-time oversight over Canada’s security agencies. He also said this case is troubling in its secrecy.

“When it comes to the review mechanisms of the national security agencies like CSIS, we expect those to be increasing the confidence that the public has towards these agencies,” he said. “When there’s a lack of transparency like that, an inability for civil society to get all the facts in a case like this, that’s extremely problematic.”